16 Colo. 1 | Colo. | 1890
Counsel contend that the fourth instruction was erroneous in charging “ that the fact that the land is
' There is an apparent discrepancy in one respect between the different portions of the charge; that part given at the instance of plaintiff in error was fully as favorable as was warranted, and in some parts might be regarded as contemplating prospective and speculative damage, while that given at the instance of the defendant, though apparently somewhat at variance in this particular with that given on the prayer of the plaintiff, appears to be sustained by, and in the language of, the authorities. That in estimating damages, merely possible or imaginary uses or speculative schemes of its proprietor are to be excluded, see Pierce on
. It is ably urged in argument that the third and fifth instructions were erroneous in the clauses where it was said that the value of the land taken and the damages to the residue should be assessed “ in accordance with the situation of the propertjr and conditions existing at that time,” viz., at the date of filing the petition.
■ The language in our Code of Civil Procedure, section 253, is-: “ In estimating the value of all property actually taken, the true and actual value thereof at the time of the appraisement shall be allowed and awarded,” etc.
. The statute is imperative, and the instruction is, in violation of it, technically incorrect. In view of whatj according to the record, “ the evidence tended to show,” we cannot say the error was harmless; whether or not there was any change of value between the date of the petition and the time of trial is not shown. As it was erroneous, and counsel for plaintiff in error insist that -it was prejudicial, the judgment should be reversed and the cause remanded.
I concur: Richmond, C.
' I dissent: Bissell, C.
. For the. reasons stated in the foregoing opinion the judgment is reversed.
Reversed.